Guantanamo Bay Hearings: Process Or Punishment

I spoke on a panel about Guantanamo Bay Friday. Among other things, I argued that much what is treated as “process” for Gitmo prisoners – everything from aggressive interrogation designed to elicit valuable information to the uncounseled, evidence-free hearings designed to identify some truth about a prisoner – is really just punishment. (Malcolm Feeley’s been down this path.) In my view, torture in the name of evidence gathering can be better understood as an act of punishment against both the individual and the group the individual is perceived to represent. Similarly, the Kafkaesque nature of hearings to determine whether one is an enemy combatant can be seen as part of an overall brutalization scheme. Since these hearings seem incapable of producing any factfinding that didn’t precede them, they are either a legal formality (the kinder view) or a strategic opportunity to taunt the prisoner.

My view may seem radical, but I find support in the recent comments of Charles Stimson, an attorney and senior Pentagon official. Stimson implied that Big Law Firm clients should boycott those shops that represent individuals at Gitmo. Why would that be? It could only be because these individuals – who haven’t been tried and found guilty of anything – must be guilty. And thus the act of representing them in their hearings can only be seen as undermining their punishment. If the hearings are intended to produce facts, and we believe in the adversarial system (a fair, although perhaps baseless, assumption), good lawyers should lead to superior results. If, on the other hand, the hearings are designed to give prisoners the sense that freedom could come soon – only to be dashed again….that is, if the hearing process is really a gentrified form of torture, played out over a long calendar…then Stimson’s comments make some sense. Anything that creates the potential of that a prisoner might be released (because, for instance, he was improperly detained) dilutes the effects of this process-like punishment scheme. And just who are these Big Firm lawyers to undermine the punishment of these criminals? Stimson’s comments are something only people like Crona and Richardson could love.

Hat tip to Ian Weinstein for reminding me of Malcolm Feeley’s book and thus motivating me to actually post this entry, after having shelved it.